October 20, 2005

What are the reasons for supporting Harriet Miers? I've been trying to understand that. I find the failure to express dismay at the embarrassing selection rather strange. Let me start a list, based on my observations, of the various sorts of Miers non-critics -- they aren't really supporters, are they? -- based on what I think I'm seeing and a little speculation:

1. Some folks must just love Bush, the man. They're fans!

2. Some people think it serves the overall good of the country (and, perhaps, the world) to support the President, whatever he does. Do not make any trouble for the President. Shhh.

3. Some people think it serves the good of their party to support the nominee. This would include Republicans, who don't want to see anything go badly that involves their side, and Democrats, who think their folks will fare best staying out of a fight as long as the other side is fighting itself.

4. Maybe some people just don't think the Supreme Court matters very much and, when a slot opens, it can be filled with just about anybody. Oh, maybe pay some attention to how the person will vote, especially on one issue that you care about, but other than that... what? -- am I supposed to believe there's some sort of "legal analysis" skill involved here? Don't be so naive! It's all politics!

5. Some people think the Court matters a lot, but they want the conservative side de-fanged. As long as a conservative president is making the appointments, the preference is for minimal judges, the less analytical skill and jurisprudential dedication the better. Let Miers come on the Court as nothing more than a floating vote to be captured by one of the other justices.

6. Some people feel sympathetic toward Miers, the woman. The attacks are mean, I must defend her! She's a human being, with feelings. She's worked hard. She's just a regular lawyer, a decent person, and the attackers are a bunch of elitists who are pissing me off.

I am a law student in North Carolina, and one of my professors suggested that it would be good to have a person on the Court who could see issues from the practitioners' point of view. He indicated that he feels the Court is a rather elitist institution, and the presence of someone with a more practical perspective would be a wonderful addition to the Court. Frankly, I don't agree, but thought I would mention it.

I support her because as she sits on the bench she will doodle and some patriotic clerk will release her doodling to the press , which will show all kinds of hideous caricatures of the American people and our many institutions and traditions and there will be a voter's revolt and term limits will be imposed on high-handed Clarence, prunish Ruth and the rest of the gang in black.

Sean, I am a commercial litigator. There's no way what I do is more demanding than intellectual property law.

8. If Miers doesn't get the slot, it might go to Judge Luttig, and if he gets the slot, then it makes it more difficult for Justices Scalia, Thomas and Roberts to determine who their clerks will be, and we can't have that kind of increase in transaction costs while we're fighting a war against terror.

9. Because however bad she is, she'll probably be doing it for ten years fewer than her replacement.

It's probably a subset of both 1 and 4, but there's a small number of people I think, supporters and non-supporters, who think this is a masterstroke of a pick. He "knows her heart," and she must share his view of things and will vote like he would, and plus, she's confirmable unlike actual brilliant judges.

From what little I obviously know Miers strikes me as inscrutable enough that Bush doesn't know her heart, other than in the born again sense, plus I think the argument that you can't confirm actual brilliant judges doesn't work, but I think there's an element of this. Especially among the people who poke and prod about how opponents only oppose her because they've never heard of her or she's not enough like them or whatever. (Can't think of any examples off the top of my head)

Danielle, Sean: I've made the practitioner point myself. But I don't believe Miers is that person. She moved into law management and bar politics and Republican politics. She's not a lawyerly enough lawyer to fit that model.

Paul: The "elitists are pissing me off" point is in my #6, though you may think my #6 has too many things in it to be a single point. Check out my #3 if you're vigilant about two-ness.

Matt: You might convince me to add a #7: Some people may actually believe the argument that her religion will make her a good judge. I don't know if I've seen anyone express that belief, though I've seen people who support her try to get others to buy the nomination on that ridiculous ground.

A lot of the non-critics I've spoken to seem to like her because she's not especially qualified. In particular, they like that she went to SMU instead of Harvard/Yale/Stanford; too many pointy-headed Ivy grads hogging all the plum positions.

In other words, they're anti-elitists. Color me underwhelmed by their logic.

I used to view the Supreme Court as a legal institution, then I went to law school, heck...it's one of the 3 branches of government. It's all politics. "War is diplomacy by other means." "The Supreme Court is politics by other means." Why should we expect any less.

1. Votes matter. Opinions may matter, but to a lesser degree. For example, which is more influential to society at large: a 5-4 majority in Kelo, or a dissenting opinion in that case?

2. Trust – who will be blamed if a nominee of a Republican president votes like Stevens, Souter, Kennedy or O’Connor? Do you think W. has any feelings about his father’s pick of Souter? If I were making a decision that would affect my legacy, I would want to know the nominee, and not take the word of a Sununu or Rudman. How about you?

I, personally, trust the judgement of George W. Bush far more than I do the combined faculties of Harvard, Yale, UW and San Quentin combined. I opine that that is the majority opinion amongst the more than 62 million people who voted for him.

Perhaps #7 is that the common criteria bruited about for a Supreme Court nominee are wrong?

I think the academic community is doing the country a considerable disservice by attempting to push academic merit as a qualifier onto a non-academic position, and, along with the politicians, by asserting that ideology ought be an important, if not the important, criterion.

Well from this humble former practitioner--it just t'aint so.

What I want in a judge above all else is someone who is honest, fair, and just.

I know those concepts seem hokey and, ill-defined, but they have meaning and they matter.

"Honest" means that if the evidence or the case doesn't match the judge's preconception, he will go with what's presented to him. It may be a way of saying "open minded".

In my experience, brilliant judges often fail this criterion. They tend, I think, to build up very clear pictures in their mind of what things ought be, and are less willing to be persuaded that in this case they are different, or are willing to bend the case presented them to present things as they think they ought be..

"Honest" also means an opinion that squarely confronts all the facts presented and explains the reasoning that from those facts reaches the result. No cheating in the intellectual process.

"Fair" also comprehends "open minded", but perhaps a bit more broadly. A justice needs to recognize that he has predilections and be willing to put them aside. It also means that he will avoid, to the extent possible, having a case or decision prejudiced by irrelevancies such as one's ongoing feud with another justice, the crummy job of one counsel, "hot" points in one's makeup etc.

"Just" requires that the justice recognize that the case before him deals with real people and is not just a framework upon which to hang policy issues. Yes, a job of the Supreme Court is to determine policy and to set precedent for all the federal courts, but it does so in the context of an actual case and cannot lose that perspective. It must also recognize that legal theories, no matter how well thought out, often are holed by the rocks of reality. An "unjust" result is not merely an incidental cost of a great theory of the law, but an indication that the theory is wrong.

Finally there has to be recognition that a Supreme Court is a composite creature. There is a powerful tempation to say this Justice of that Justice is a great Justice, but that really is not what matters. What matters is the overall court. Diversity of strengths and weaknesses does make for a better court if the strengths fill in for one another. I detest the racist "diversity" as propounded by many in academia, but true diversity of individuals makes for a better army squad, programming team, ecumenical council, departmental faculty, and Supreme Court..

If you place Harriet Miers into this framework, I think you obtain a much different view of how fit she is for the court. That's not to say the Miers necessarily ought be a justice. Rather she ought be considered in a different framework than commonly now applied.

I've had a difficult time getting worked about this -- being trying for weeks, but just can't do it.

But I think it's an incredibly shrewd move that has completely befuddled the Democrats (like that's hard these days). And the Far-Right ranting about her actually makes her look like a moderate, making her more palatable to the public and further befuddling the Dems.

Honest, Fair and Just are lovely qualities - and you define them in a powerful and meangingful way.

What about Harreit Miers sets her apart as being an exemplary character with regards to honesty, fairness, and justness?

The woman is is just not a heavy in ANY category. She comes across as a borderline sycophant with an honorable - but hardly unique or remarkable - career path. She's way above average, granted, but at that level of the game there are thousands of people who are at least as impressive.

Also - you're criteria seem to imply that professional experience of any kind would be adequate for SC nomination. Why not get an exciting CEO of a successful non-profit charity? Honest, Fair and Just come in many many flavors - so again, why should anyone (especially someone who's excited about good moral fiber) be excited about the personal lawyer of the nominating president?

Some people are afraid that rejecting her will guarantee that the seat goes to Janice Rogers Brown or some other such well-fanged "radical."

(These are probably the people with whom I sympathize least.) (End of Quote)

Please explain why this is a bad reason to vote for the current nominee, Ms. Miers? We highly suspect we will get another nutcase like Thomas, or another creep like Scalia, should she go down in flames. If you could assure me that Althouse would get the nod, then I'd say dump Miers. Will Althouse still blog from the bench? That would be my main concern.

Beldar's dogged, day after day, detailed, insightful analysis and argument that Miers has actually had an accomplished legal career certainly surpasses in sheer breadth of effort Beldar's dogged, day by day, detailed, insightful analysis and argument that John Roberts had, too. If you know what I mean.

Go Harriett. We need at least one justice not from the hollowed ivy halls and musty ateliers of academia. She's only one of nine, and I hope she votes her conscience not some prescribed bunch of talking points from the right wing elites. If she votes to sustain RvW, and does it in good faith, good for her. If she votes to overturn it, good for her as well! Thank you Mr. President for undressing the snobs among us.

Yeah, I'd have to agree with all the people who think that the court needs less queens and more worker bees. It's as simple as that, some of the court decisions lately have been making even the constitutional law experts scratch their head.

Bottom line, do you think the constitution should be readable and understandable by everyone, or just lawyers?

Those of you who think you're talking to me when you make the anti-elistist argument need to go back and read my "Mellowing on Miers" post! So you don't want an academic type. Fine! But why is she the non-academic type for the slot? You need to focus on the issue: why Miers? The question isn't: why are some other people not good choices?

"What about Harriet Miers sets her apart as being an exemplary character with regards to honesty, fairness, and justness?"

First, I stress that these are small indicia and much extrapolation. We don't know enough about her yet.

That said, let me try to answer your question:

1. Meier's Dad died and left the family in straitened circumstances. She had to get a job and a scholarship and live at home to stay in school.

Being on the wrong side of the fickle finger of fate teaches that all doesn't go according to plan. That is related , distantly, but I think truly, to my point about good legal theories being holed by reality.

2.Miers was born agin when she was somewhere around 50. I don't think being religious is per se good, but in her case it does reflect being willing to make a major change in one's character based on experience. As with the author of "Amazing Grace" I have more respect for someone who comes to a different religion on the tail end of adulthood than one who is simply inculcated with it in childhood and goes through life with an unchanged faith. You or I might not reach the same conclusions, but it reflects an honesty that says "I look at the facts of my life and decide I must change".

3. She is by all accounts a detail person (missed bar dues a troubling contraindication). I dislike detail people, but recognize the need for them, and that detail people tend to be very fact oriented. A number of observers give a picture of her carefully considering the facts and then coming to a conclusion. Good -- the court needs that and it fits within my definitions of "honest" and "just".

4. Her practising legal career seesm to have largely consisted of advising others -- with only occasional trials. Clients seem to have been pleased with her advise. Performing well a lawyer's function of advising a client requires a peculiar dispassion. You have to tell the client wht you think he result will be not what you would like it to be. An inability to shed predilections is damaging. See my definition of "fair".

5.I have the impression that a lot of people who were on the other side of issues from Harriet Meirs like and respect her. Certainly her opposing lawyers in Texas do. She continued as managing partner long enough for a coalition of the disappointed to become a majority. She was suggested by Reid, and until politics became dominant seemed to be well regarded by a number of democratic senators. Her opponents on the Dallas City Council seem to respect her.

That usually means someone of extraodinary people skills or someone who reaches decisions honestly.

Finally, and quite importantly, though not within my trio of honest, fair, and just is the matter of does she make the court as a whole, better or worse. I previously posted on this.

Would I vote for her were I a Senator. I don't know yet? She does look promising to me. I would want to learn more about her.

And, of course, any small woman who plinked at cans with a .45 has something out of the ordinary about her (grin).

I liked you second post as much as I liked the first - which is quite a bit...but it still does not read like a comelling argument for Miers so much as a gentle apologia for why we shouldn't just disregard her outright. Which I think is all your are trying to argue anyway - given you are not ready to 'cast your vote' on her yourself.

I will only say that I believe John Roberts displays many of the same honest, fair and just traits - and he has maintained that image while engaging in some major, furious legal battles (e.g. arguing before the court 35 times).

For Miers to maintain such qualities in her pursuits as a beaurocrat and manager is not unimpressive. But it lacks the gravitas and relevance of the places where Roberts kept his integrity.

She is only getting this nomination because of her personal connection to the President. She is not exemplary in any other way. As such, it is an off-putting message for the president to send (I reward friends, I don't care about talent) and it is in inappropriate nomination (I only nominate friends, I don't care about separation of powers).

Sean, I am a commercial litigator. There's no way what I do is more demanding than intellectual property law.

It is if you're doing it right. (ducks)

Effern enumerates as a qualification for a nominee to the Court:

He or she is the best available candidate for the position

"Best available" is not a meaningful standard when applied to Supreme Court nominees. There are easily a hundred (and probably five hundred) living American judges, lawyers, and politicians who are well qualified to sit on the Supreme Court. (I express no opinion on whether Miers is one of that less than exclusive number.)

(This is a weak analogy, but suppose you were asked who the greatest living film actor in the English-speaking world is: any fair-minded person could easily come up with a list of 20 plausible candidates, and it would be foolishness to insist that your particular choice was indisputably the "best.")

I agree that POTUS is under no obligation to pick the "most qualified" person to be on SCOTUS. But when POTUS gets up and says of Miers that "She's the best person I could find," doesn't that beg the question of "where exactly were you looking?"

"She is only getting this nomination because of her personal connection to the President. She is not exemplary in any other way. "

I don't think that is completely fair though true.

Look at it this way. My neighbor recently asked me whom I would suggest for some septic tank work (that is a lot like judging, right?).

I recommended the people we have done business with and been pleased with for 20 years. Are they the best? Likely not. But they are very good, and, more importantly I know that.

The equation thus is not simply one of "who is best?" as decided by some great umpire in the sky or by the rigorous judging exam Peter Cook flunked before he became a coal miner.

It is rather "whom is best" times the "certainty that this person is best". The more critical the choice the more emphasis should be put on certainty.

This ought not be an unusual process. It is exacly the same one that my friend,neighbor, anmd cardiologist explained when he gave me a choice of two cardiac surgeons for my heart surgery. One, he said, he knew very well and had high confidence in. The other a newer surgeon, by repute was exceptionally gifted, but my cardioligist did not have the same extensive experience with him. I went with #1.

I presume that with Bush, Miers is someone that he has a high degree of certainty with. We don't, but then we weren't elected to make the choice.So is the personal connection important. Sure it is, but not in the demeaning way that you suggest.

Of course, if I disliked Bush and had little confidence in him, I would probably tend to discount this factor, or regard it as a negative (grin).===============

Well, Ann, to equate "my preferred nominee would overrule Roe" to "it doesn't matter who's on the S.C." is disingenuous and unfair. You might fairly call my jurisprudence "results oriented," but do you truly expect anyone to believe that your academic colleagues are different? Do you think I haven't read Ackerman, Dworkin etc.? Do they have any jurisprudential (as opposed instrumental) principles at all? You know that they do not.

But step up to the plate. Name some candidates who are (i) present or former managing partners at AmLaw 200 firms (the pinnacle of professional achievement, and much more demanding than what you or anyone you know does), (ii) reliable votes against Roe, and (iii) confirmable. The list isn't long.

As an engineer I enjoy going getting on site. I like seeing what I've designed being built, but equally I value the feedback. I've a bit of professional arrogance, yet not to the point of summarily dismissing constructive input/criticism from the laity. I realize that while I can draw really pretty pictures, if it can’t be built, my pictures are worthless. In fact some of my best designs have evolved from the grunts that actually put them together.

A long preface to seconding Paul's #7 - though I would not have worded it that way. I suspect there are a number of folks that are just as suspect of the conservative talking heads and intellectual elites as they are of those on the left. We do not necessarily support Miers, we just wish those blasting her would pause for a bit. We've read and heard, and read and heard, and read and heard your objections. And now we want to hear Miers...

Ann, in the Mellowing on Miers post, you wrote: "Why is it not a good thing to have one person on the Court who approaches constitutional decisionmaking the way a lawyer would deal with the next legal problem that comes across the desk?"

Good question.

And then put yourself in W's shoes, with daddy HW's choice of Souter in mind, ask yourself, "Who do I trust to uphold the values I consider dear?"

Our host wrote, "She moved into law management and bar politics and Republican politics. She's not a lawyerly enough lawyer to fit that model."

That last sentence is, I believe, the least fair and most inaccurate statement I've ever seen you write, Professor Althouse. I believe it would draw a startled gasp of disbelief, followed by glares, from her partners, colleagues, and peers.

My own concept of what it means to be a "lawyer" includes what you do as part of our common profession, ma'am. And it's also broad enough to include giving legal advice and representation to the President and to the Governor of Texas, which you appear to dismiss as "Republican politics." It includes leadership in local, state, and national bar organizations. It includes managing a law practice, which is the typical vehicle through which abstract law becomes available to concrete clients and controversies.

Perhaps you meant "practicing lawyer," given the context (putting a practitioner on the Court). But even there, however, your opinion is not factually supportable. Ms. Miers was graduated from law school in 1970, yet you simply dismiss a 35-year career — including over a decade and a half before she'd held her first local bar association office or firm management position — as meaningless. And I don't know how much of her time in the last twenty years has been spent in representing paying clients in court as opposed to other activities, but it's obviously more than a trivial amount even if one only looks at reported decisions in which she was involved.

Were you a "professorial enough law professor" after your first 15 years of teaching and writing, ma'am? We've never met, but I'm reasonably confident that you were! Indeed, I assure you that I'd take offense on your behalf at anyone who suggested you weren't — even if perhaps you've been on more faculty committees in the last few years than previously, or if you've spent significant amounts of time on parallel activities to your teaching like, say, blogging. If you took five years off from being a professor to serve in senior positions in a presidential administration, I'd still not say you'd forfeited your right to be considered a "professorial enough professor," given your career accomplishments.

I hope you'll re-think this rather startling statement. With due and genuine respect, I think it's below your usual standards of objectivity, perhaps because it first appeared in your comments rather than in the text of a post. I know I more often say things badly, or mangle my meaning, when writing in blog comments. Surely well-informed people can disagree and debate in good faith over whether Ms. Miers ought to be confirmed, or whether she was as good a nominee as we think the country is owed, without cavalierly and, frankly, insultingly dismissing Harriet Miers' career as "not lawyerly" enough to count as a consideration in her favor.

you know very well that bar politics is no measure at all of legal acumen.

you know very well that managing a law firm means you don't have time to practice law much. a supreme court justice should have a passion for law that you, i, and ann, can all agree is incompatible with that level of administrative duties.

as far as her service in the bush administration as counsel to the pressident goes, that's not something in her favor. that's a negative.

if she had served in that capacity to some previous president, then it would be a positive. but when the same president who gave you the position in his adminstration nominates you to fed. ct., that's just cronyism.

Ann has it right and shouldn't apologize to Beldar. I'm an 18 year commercial litigator in Houston. I've read Beldar's previously posted summary of Miers' published cases. To the trained eye, Miers' record of published cases is quite pedestrian. In fact, the mediocrity of her record as summarized by Beldar is what settled my mind -- Miers is a mistake pure and simple. Footnote: I was in deposition with some large firm Dallas commercial litigators the day after her nomination. I wistfully asked them if they could reassure me that she was in fact a top flight commercial litigator -- they had never encountered nor heard of her in practice.

"... am I supposed to believe there's some sort of 'legal analysis' skill involved here? Don't be so naive! It's all politics!"

I oppose Miers, but you know, I'm almost willing to endorse Number 4 above. I am 43 years old and have never been as cynical about government as I am today. Miers's nomination is only the most recent example of why. I feel as if nothing that goes on either in Washington or my home state capital of Harrisburg today has anything whatsoever to do with me. I have voted twice a year for 25 years. I have never missed an election. But I am actually, amazingly to me, thinking of giving it up, turning inward, and just focusing on my own little small selfish interests. Gawd, am I in a mood tonight ;)